ASSORTING, UNDERSTANDING, AND …...21 3 The key here is that Acme will be using its discretion to...
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ASSORTING, UNDERSTANDING, AND TRANSLATING CONTRACT CLAUSES (054) #ata59
Transcript of ASSORTING, UNDERSTANDING, AND …...21 3 The key here is that Acme will be using its discretion to...
ASSORTING, UNDERSTANDING, AND
TRANSLATING CONTRACT CLAUSES (054)
#ata59
PaulaArturo
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Lawyer, Translator, and former Law Professor.
Contact me at:
▪ www.translatinglawyers.com
▪ @paulaarturo
The team (left to right) Hegel, Chief of NapsLucky, Chief of Cuddles(not in photo)Pablo Klammer, co-director
What’s on today’s agenda?
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Fidelity vs. Transparency Parts of a Contract
Categories of Language
Developing Cheat Sheets
TranslatingContracts
1.Fidelity vs. TransparencyFinding some middle
ground
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Transparency vs.Fidelity
The concept of FIDELITY
Many legal translators understand fidelity to source as meaning strict adherence to source, without adding or subtracting as much as a comma, even if that means the target text will read like a translation.
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The concept of TRANSPARENCY
Transparent renditions are those that flow as if originally written in the target language, conforming to the target language’s grammatical, syntactical, and idiomatical conventions.
The last thing any lawyer wants is for a Court to breathe meaning into her contract.
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2.PARTS OF A CONTRACTThe Devil is in the
systems
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Civil Law, Common Law or Mixed?
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The parts of a contract will vary across legal systems.
Source: University of Ottawa
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Parts of Common Law Contracts
THE FRONTThe title, the introductory clause, the recitals, and the lead-in
THE BODYArticles, Sections, Sub-Sections, and Enumerated Clauses
THE BACKThe concluding clause, the signature blocks, consents, and attachments
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Parts of Civil Law Contracts
Title Indicating type of contract
Body The introductory clause, Articles, Sections, Subsections, etc.
Assertion of (Non-Normative) FactsNormative FactsIncorporation of codes by reference
Closing
Attachments
3.CATEGORIES OF LANGUAGEWhat they are and
how to use them
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It’s all about the process
What are the parties trying to accomplish?
What category of language does that fall into?
How should I interpret this clause?Regardless of source word choice.*
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1Title: Sale and Purchase of Assets
Subject to the terms and conditions set forth herein, Acme shall sell to Wile E. Coyote and Wile E. Coyote shall purchase from Acme, all of the Assets, free and clear of any Lien other than Permitted Liens.
What’s wrong with this picture?
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We know this is a sale and purchase agreement. So we know that the contract itself is intended to make that sale and purchase possible, which is another way of saying that the parties want to perform the sale and purchase by means of this contract.
Title: Sale and Purchase of Assets
Subject to the terms and conditions set forth herein, Acme shall sell to Wile E. Coyote and Wile E. Coyote shall purchase from Acme, all of the Assets, free and clear of any Lien other than Permitted Liens.
Are they selling and purchasing now or on a future date? Willingly? Conditionally? Are there any additional steps required or are they buying and selling by means of the speech act of saying I’m selling/I’m buying?
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Language of performance
To accomplish an action by means of a speech act
Subject to the terms and conditions set forth herein, Acme hereby sells to Wile E. Coyote and Wile E. Coyote hereby purchases from Acme, all of the Assets, free and clear of any Lien other than Permitted Liens.
hereby + active voice+ simple present
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2Title: Insuring Agreement
Wile E. Coyote shall be responsible for giving notice in writing as soon as is practicable: a) in the event of the cancellation of any Underlying Insurance; and b) of any notice given or additional or return premiums charged or paid in connection with any Underlying Insurance.
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An insuring agreement is the portion of an insurance policy in which the insurer promises to make payment to or on behalf of the insured.
Title: Insuring Agreement
Wile E. Coyote shall be responsible for giving notice in writing as soon as is practicable: a) in the event of the cancellation of any Underlying Insurance; and b) of any notice given or additional or return premiums charged or paid in connection with any Underlying Insurance.
Unnecessarily convoluted?
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Language of obligation
To impose duties on one or more parties
Wile E. Coyote shall give notice in writing as soon as is practicable: a) in the event of the cancellation of any Underlying Insurance; and b) of any notice given or additional or return premiums charged or paid in connection with any Underlying Insurance.
If translating into English, consider using must instead of shall
“If you want to retain shall, then make
sure that in each sentence in which it
appears, it’s the equivalent of must.
Otherwise, cut it.
- Bryan A. Garner
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3 Title: Provision of Goods and Services
Acme shall be entitled, in its sole discretion, to review the qualifications of subcontractors and to reject, without affecting any of Acme's rights under the Contract, a proposed subcontractor that Acme reasonably considers is not qualified to perform obligations under the Contract.
What’s wrong with this picture?
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The key here is that Acme will be using its discretion to determine whether a subcontractor is qualified or not.
Title: Provision of Goods and Services
Acme shall be entitled, in its sole discretion, to review the qualifications of subcontractors and to reject, without affecting any of Acme's rights under the Contract, a proposed subcontractor that Acme reasonably considers is not qualified to perform obligations under the Contract.
May?
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Language of Discretion
To grant one of the parties discretion as to whether or not to take a specific action
Acme may, in its sole discretion, review the qualifications of subcontractors and reject, without affecting any of Acme's rights under the Contract, a proposed subcontractor that Acme reasonably considers is not qualified to perform obligations under the Contract.
May means “has discretion to,” “is permitted to,” “is authorized to”
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Congratulations! You’ve survived the hardest part of this presentation.
4.Developing a Cheat SheetBecause life’s too
short!
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Keep the magic questions handy!
What are the parties trying to accomplish?
What category of language does that fall into?
How should I interpret this clause?Regardless of source word choice.*
Remember for each purpose or intention, there is a category.
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For each category there are rules.
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Play the opening like a book, the middlegame like a magician, and the endgame like a machine.
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Thank you very much for your time
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Remember, you can find me at:
▪ www.translatinglawyers.com
▪ @PaulaArturo
Credits Special thanks to all the people who
made and released these awesome
resources.
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▪ Presentation template by SlidesCarnival
▪ Photographs by Unsplash
▪ Learn more about slidedocs at duarte.com/slidedocs
▪ Manual of Style for Contract Drafting by Kenneth Adams
